2006 PLP 546 (CLC)

MIAN SAQIB NISAR, J.

The suit for the specific performance brought by the respondents, inter alia, against the appellants, has been decreed on 9-1-1998; the appeal of the appellants, has also failed on 27-2-1996.

2. Briefly stated the facts of the case are that the defendants, Mst. Naziran Bibi and Mst. Raisham Bibi entered into an agreement to sell, dated 2-12-1979 for the sale of their land measuring 62 Kanals, 18 Marlas, for a total consideration of Rs.1,60,000 it was agreed between the parties that the sale shall be accomplished in favour of the plaintiffs, after the decision of some dispute regarding mutation of the vendors, which was decided on 26-3-1984. As the sale was' not completed, the respondents brought a suit for the specific performance, with the further prayer, that they also challenged the sales made in favour of the appellants by the vendors, numbering 5526 and 5527, dated 18-10-1982. The appellants, who are the subsequent purchasers of the property, through the aforesaid sale-deeds contested the matter have denied the execution of the sale agreement made by the two ladies, and also took up the defence that the transfer of the property in their favour by the ladies is genuine and that they are the bona fide purchasers. Issues were B framed, parties were put to trial and the learned Civil Judge while holding that the valid execution of the agreement to sell has been proved, and also the part payment of the consideration to the vendors, besides that the sale-deeds in favour of the appellants are result of collusion and that they are not the bona fide purchasers, decreed the suit on 9-1-1988; the appellants preferred an appeal, but without any success. There is concurrent finding of fact, recorded by the two Courts below, that in all the material issues i.e. about the proof of the agreement to sell; collusiveness of the sale-deeds in favour of the appellants and that they are not the bona fide purchasers.

3. Learned counsel for the appellants, has stated that the appellants have a superior right of pre-emption, to challenge the sale made in favour of the respondents/plaintiffs, and thus, the suit for specific performance, in the exercise of discretionary power of the Courts, could not have been decreed, and in this behalf, he has relied upon the judgments reported as Dulhin Rajkishore Kuer v. Muhammad Qayyum and others AIR 1942 Pat. (29) 366; Saheb Dayal Singh v. Muhabir Singh and others AIR 1930 All. 166; Hahibar Rahaman v. Ali Azhar and others AIR 1926 Cal. 1237 and Genda Ram and another v. Ram Chand and another AIR 1924 Lah.

163. It is also submitted, that the agreement to sell has not been proved as against the vendors, who were the Pardanashin ladies, and it is highly doubtful if the said ladies had executed the agreement. Besides, the onus to prove the valid execution was on the shoulder of the respondents, which they failed to discharge. In this regard the reliance has been placed upon the judgment reported as Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar.

324. It is further submitted that the grant of specific enforcement of an agreement is the discretionary relief and thus, under section 22 of the Specific Relief Act, such relief when tantamounts to cause hardship to the defendants shall not be granted. Because, if the relief is allowed to the appellants who have purchased the property through sale-deeds, their sale-deeds shall be annulled and this shall cause them hardship.

4. I have heard the learned counsel for the parties. As regards the question about the proof of the execution of the agreement to sell and the payment of the consideration to the ladies is concerned, suffice it to say that Mst. Naziran Bibi, one of the vendors has filed the conceding written statement as a defendant No.1. It is settled law, that the admissions made by a party in the pleadings stated at a high pedestal, than the ordinary admissions, resultantly, when she admitted the claim of the plaintiffs in the written statement, as this resolves the proposition about the execution of the agreement and receipt of consideration to her extent.

5. As regards Mst. Raisham Bibi, the other vendor is concerned, suffice it to say that she was proceeded ex parte, and, therefore, the ex parte evidence led by the respondents, to prove the agreement to sell, which has been concurrently held by the two Courts below to be adequate and they on the appraisal thereof have believed the same. No misreading and non-reading in this behalf has been asserted or pleaded.

6. For the question, of being bona fide purchasers and about the validity of the appellants' sale-deeds, is concerned, it may be reiterated that there is concurrent finding of fact recorded by the two Courts below, that the appellants are not the bona fide purchasers, learned counsel for the appellants, has not been able to show any evidence on the record, on account of which they could claim the benefit of section 41 of the Transfer of Property Act, 1882, thus, they have failed to discharged the initial burden of proof of this issue, which was primarily on their shoulders. For the plea of hardship, I am not convinced that the appellants, who have collusively and knowingly purchased the property subsequent to the agreement to sell, can set out section 22 as the defence.

7. As far as the last submissions about the pre-emptory right of the appellants, concerned, suffice it to say, that it is settled law, that no one should be allowed to plead the case beyond the scope of his pleadings. And even if any evidence has been led, which is outside the purview of the pleadings of a party should be ignored by the Court. The written statement of the appellants has been perused, but the plea now raised is conspicuously missing therein. It is for this reason, that no issue had been framed by the trial Court in this behalf.

8. In the light of above, this appeal has no merits and is hereby dismissed. H.B.T./G-155/L Appeal dismissed.